Baltimore & OR Co. v. Saunders

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: PARKER and DOBIE, Circuit , and CHESNUT
• Citation: Baltimore & OR Co. v. Saunders, 159 F.2d 481 (4th Cir. 1947)
• Decision Date: 06 January 1947
• Docket Number: No. 5532.,5532.
• Parties: BALTIMORE & O. R. CO. v. SAUNDERS et al.

159 F.2d 481 (1947)

BALTIMORE & O. R. CO. v. SAUNDERS et al.

No. 5532.

Circuit Court of Appeals, Fourth Circuit.

January 6, 1947.

COPYRIGHT MATERIAL OMITTED

W. F. Wunschel, of Charleston, W. Va. (Stanley C. Morris and Steptoe & Johnson, both of Charleston, W. Va., on the brief), for appellant.

Martin C. Bowles, of Charleston, W. Va. (L. F. Poffenbarger, D. L. Salisbury, Watts, Poffenbarger & Bowles, and Salisbury, Hackney & Lopinsky, all of Charleston, W. Va., on the brief), for appellees.

Donald O. Blagg, of Charleston, W. Va. (A. G. Stone and Rummel, Blagg & Stone, all of Charleston, W. Va., on the brief), for United Fuel Gas Co. and M. C. Kirkhart, summoned as third-party defendants.

Before PARKER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

PARKER, Circuit Judge.

This is the second appeal in the crossing accident case against the Baltimore & Ohio Railroad Company, wherein that company sought to implead the United Fuel Gas Company and Kirkhart, the driver of one of its trucks, as third party defendants. We dismissed the first appeal as premature. Baltimore & O. R. Co. v. United Fuel Gas Co., 4 Cir., 154 F.2d 545. The case was tried thereafter before a jury in the District Court; and from an adverse judgment the B. & O. has appealed, alleging error in the order denying the motion to bring in the third party defendants as well as errors alleged to have been committed in the trial before the jury. Three questions are presented for our consideration: (1) Whether there was error in denying the motion to bring in the third party defendants; (2) whether verdict should have been directed for the defendant; and (3) whether there was prejudicial error in the portions of the judge's charge of which complaint is made. We think that all of these questions should be answered in the negative.

On the first question it appears that the plaintiffs are citizens of West Virginia employed by United, which is a corporation of that state. They were injured in a crossing collision between a B. & O. train and a truck of United in which they were riding. They sued the B. & O. for damages resulting from negligence in the operation of the train. Jurisdiction of the federal court was based on diversity of citizenship, as the B. & O. is a Maryland corporation. The B. & O. moved that United and the driver of the truck be brought in as third party defendants on the ground that their negligence was the sole cause, or at least one of the proximate causes, of the injuries sustained by plaintiffs, and demanded (1) that any judgment rendered in favor of the plaintiffs be rendered against appellees, United Fuel Gas Company and M. C. Kirkhart; (2) that appellant have judgment against the appellees for all or part of any sums that might be assessed against it in favor of the plaintiffs; (3) that any judgment that might be rendered against appellant in favor of the plaintiffs also be rendered against appellees or (4) if any judgment be rendered against appellant in favor of the plaintiffs that judgment be rendered in favor of appellant and against appellees for two-thirds of the amount thereof. The District Court sustained the motions of United and Kirkhart to dismiss the amended third-party complaint, on the ground that the Court was without jurisdiction to entertain the third-party complaint since United and Kirkhart were citizens of West Virginia, the state of which plaintiffs were citizens.

The question whether third party defendants may be brought in on motion is ordinarily a matter resting within the sound discretion of the trial judge. Moore's Federal Practice vol. 1, p. 741; General Taxicab Ass'n v. O'Shea, 71 App.D.C. 327, 109 F.2d 671. The discretion was properly exercised here in denying a motion which would have required plaintiffs to litigate a cause of action which they did not assert in their complaint against parties whom they did not join as defendants, and whose joinder, if they had been joined, would have defeated the jurisdiction of the court.

The third party practice prescribed by rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is an important procedural reform the purpose of which is to avoid delay and needless multiplicity of actions. The rule should be liberally construed, but not in such way as to permit a practice which transcends the limits of federal jurisdiction. See rule 82. It may be appropriate in many cases to treat the bringing in of third party defendants as ancillary to the main action, but not where its effect is to change the cause of action as asserted, or to substitute another cause of action for it, so as to require plaintiff, against his will, to litigate against the third party defendants an alleged tort liability which plaintiff has not asserted in his complaint. While there is conflict in the decisions, the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom he does not wish to sue. See note to Advisory Committee Report recommending amendment of rule, 5 F.R.D. at 447. And this is certainly true where the effect of the joinder of the third party defendant would be to oust the court of jurisdiction. If the B. & O.'s motion had been allowed, its effect would have been to convert plaintiff's action into one against the third party defendants as well as against the B. & O. to establish tort liability on the part of one or all of them. In such situation, it would have been incumbent on the court to align the parties to the action as so constituted for the purpose of determining jurisdiction. Cf. State Farm Mutual Automobile Ins. Co. v. Hugee, 4 Cir., 115 F.2d 298, 132 A.L.R. 188; Maryland Casualty Co. v. Boyle Construction Co., 4 Cir., 123 F.2d 558. There can be no question but that such joinder of defendants by plaintiff, on the filing of the original complaint, would have defeated the jurisdiction. Slate v. Hutcherson, 4 Cir., 15 F.2d 551. It is equally clear that the situation is no different merely because one of the defendants is brought into the case by subsequent motion. Friend v. Middle Atlantic Transportation Co., 2 Cir., 153 F.2d 778, 779. In the case last cited, Judge Clark, whose connection with the drafting of the Rules of Civil Procedure entitles his opinion to peculiar weight, thus stated and answered the question before us:

"May a defendant cause a third party to be brought into a federal civil action under Federal Rules of Civil Procedure, rule 14, 28 U.S.C.A. following section 723c, to answer, along with it, to the plaintiff's claim, where the plaintiff and such party are citizens of the same state and federal jurisdiction does not otherwise appear? That is the issue...